A Texas appellate court, in a ruling yesterday that could have wide impact, has found an employer is not liable for pre-1972 injuries caused by asbestos particles carried home on a worker's clothing.

The unanimous decision by the Houston-based Fourteenth Court of Appeals overturned a trial court verdict and found that Exxon was not liable for an employee's wife's exposure to asbestos because the risk of such exposure was not known at the time.

“This is obviously a landmark decision for premises liability asbestos litigation in Texas,” said Richard O. Faulk, environmental practice group leader at Gardere Wynne Sewell LLP in Houston. He wrote a friend of the court brief for the American Chemistry Council in the case.

“This decision is extremely important, not only for its result, which is consistent with prior decisions from New York and Georgia, but also because it is based entirely on the concept of foreseeability,” Mr. Faulk said.

“Both the testimony in the case from all expert witnesses involved, as well as the plethora of scientific literature reviewed and cited by the [appeals] court, establish that asbestos injuries to remote household members were unforeseeable as a matter of law until OSHA regulated the issue in 1972,” he explained.

With this holding, Mr. Faulk said, the Texas court has established a rule that provides significant guidance for the lower courts in other household exposure cases.

The plaintiff in the case was Louise Altimore, who was diagnosed with pleural mesothelioma in 2003.

She filed suit against Exxon, where her husband Mike was a lifetime employee, arguing that the company had negligently allowed her husband to bring asbestos-exposed clothes home from work and thus caused her to be exposed to it as well.

The trial court ruled in her favor, awarding just under $1 million in actual damages and an equal amount in exemplary, or punitive, damages.

According to the appellate ruling, written by Justice John S. Anderson, Exxon was not put on notice of the risks of asbestos to their employees' families until 1972, by which time Mr. Anderson was no longer working in an asbestos-exposed position. As a result, the court ruled, Exxon could not have foreseen the problem and was therefore not liable for Mrs. Altimore's exposure.

“Exxon was put on notice in 1972 that asbestos posed a risk to persons, such as employee families, who were never on the employer's premises,” Judge Anderson wrote. “It follows that in 1972 the risk to appellee of contracting a serious illness had become foreseeable, triggering, for the first time, a duty to protect appellee and those persons similarly situated. However, by that time Mr. Altimore was working in the air-conditioned tool room and was no longer working in an environment where he was being exposed to asbestos dust.”

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